The opinion of the court was delivered by: BRYAN
This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., to recover damages for an industrial disease allegedly contracted by plaintiff in 1952 as a result of working under unsafe conditions while employed by the defendant.
Defendant now moves to dismiss the complaint under Rule 12(b)(6), Fed.Rules Civ.Proc., 28 U.S.C., on the ground that it appears from the face of the complaint that the action has not been timely brought.
The statute of limitations may be raised on a motion to dismiss the complaint where it appears from the face of the complaint that the action was not commenced within the statutory period. Kincheloe v. Farmer, 7 Cir., 214 F.2d 604; Panhandle Eastern Pipe Line Co. v. Parish, 10 Cir., 168 F.2d 238; Berry v. Chrysler Corp., 6 Cir., 150 F.2d 1002; Drabkin v. Gibbs & Hill, D.C.S.D.N.Y., 74 F.Supp. 758, 762; Sinclair v. United States Gypsum Co., D.C.W.D.N.Y., 75 F.Supp. 439, 442. Plaintiff's contention to the contrary is mistaken.
Section 6 of the Federal Employers' Liability Act, 45 U.S.C.A. § 56, provides:
'No action shall be maintained under this Act unless commenced within three years from the day the cause of action accrued.'
The present action was commenced on May 2, 1957, concededly more than three years after the cause of action accrued. However, the complaint alleges in paragraph 9:
'9. Subsequent thereto defendant's agents, servants and employees fraudulently or unintentionally mistated to plaintiff that he had seven years within which to bring an action against said defendant as a result of his industrial disease and in reliance thereon plaintiff withheld suit until the present time.'
Plaintiff contends that if these allegations are taken to be true, as they must be on this motion, the three year statute of limitations in the Act has been tolled by the defendant's fraud or misrepresentations.
The question presented is whether a cause of action under the Federal Employers' Liability Act is irretrievably lost upon the expiration of the three year period of limitation in Section 6 of the Act, or whether the right which the plaintiff asserts remains alive if plaintiff's failure to sue within three years is brought about by defendant's fraud.
The cases are in sharp conflict on this question.
There has long been a distinction drawn between ordinary statutes of limitation and time limitations prescribed in statutes which create the liability and confer the right of action. Where the time limitation is an integral part of the statute creating the substantive right, the time for commencing the action prescribed in the statute is not extended by reason of fraud or concealment which might work an extension of ordinary statutes of limitation. Pollen v. Ford Instrument Co., 2 Cir., 108 F.2d 762; Bell v. Wabash Ry. Co., 8 Cir., 58 F.2d 569, 571; Sgambati v. United States, 2 Cir., 172 F.2d 297, certiorari denied 337 U.S. 938, 69 S. Ct. 1514, 93 L. Ed. 1743; United States ex rel. Nitkey v. Dawes, 7 Cir., 151 F.2d 639, certiorari denied 327 U.S. 788, 66 S. Ct. 808, 90 L. Ed. 1015; Larson v. Port of New York Authority, D.C.S.D.N.Y., 17 F.R.D. 298, 300.
One line of cases holds that the Federal Employers' Liability Act is such a statute creating a substantive right, and that Section 6 is a 'built in' statute of limitations. The filing of the complaint within three years after the cause of action accrued is therefore held to be a condition precedent to recovery, the cause of action is extinguished after the running of that period, and the period cannot be extended by the claimant's inability to sue by reason of infancy or insanity or by delay caused by defendant's fraud or concealment. Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534, certiorari denied 332 U.S. 762, 68 S. Ct. 65, 92 L. Ed. 348; American R. Co. of Porto Rico v. Coronas, 1 Cir., 230 F. 545, 546, L.R.A.1916E, 1095; Bell v. Wabash Ry. Co., supra; Ahern v. South Buffalo Ry. Co., 303 N.Y. 545, 563, 104 N.E.2d 898, affirmed 344 U.S. 367, 73 S. Ct. 340, 97 L. Ed. 395. Cf. Central Vermont Ry. v. White, 238 U.S. 507, 511, 35 S. Ct. 865, 59 L. Ed. 1433.
This view was expressed by the Court of Appeals of this Circuit in Osbourne v. United States, 2 Cir., 164 F.2d 767, 768, as follows:
'Generally, where a statute creates a cause of action which was unknown at common law, a period of limitation set up in the same statute is regarded as a matter of substance, limiting the right as well as the remedy. Filing a complaint within the prescribed period is a condition precedent to recovery, and the cause of action is extinguished after the running of the period. The general rule, developed chiefly with respect to the Federal Employers' Liability Act, §§ 1-10, 45 U.S.C.A. §§ 51-60, had been applied also to the period of limitations in the Jones Act, which incorporates the period in the Employers' Liability Act, and to the Suits in Admiralty Act. The practical results of the application of this rule have been * * * that the period of limitation under any of these Acts will not be ...